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Peruta v. California

United States Supreme Court

June 26, 2017

EDWARD PERUTA, ET AL.
v.
CALIFORNIA, ET AL.

         ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

         The petition for a writ of certiorari is denied.

         Justice Thomas, with whom Justice Gorsuch joins, dissenting from the denial of certiorari.

         The Second Amendment to the Constitution guarantees that "the right of the people to keep and bear Arm[s] shall not be infringed." At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari.

         I

         California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or concealed. With a few limited exceptions, the State prohibits open carry altogether. Cal. Penal Code Ann. §§25850, 26350 (West 2012). It proscribes concealed carry unless a resident obtains a license by showing "good cause, " among other criteria, §§26150, 26155, and it authorizes counties to set rules for when an applicant has shown good cause, §26160.

         In the county where petitioners reside, the sheriff has interpreted "good cause" to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff's policy specifies that "concern for one's personal safety" does not "alone" satisfy this requirement. Peruta v. County of San Diego, 742 F.3d 1144, 1148 (CA9 2014) (internal quotation marks omitted). Instead, an applicant must show "a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm's way." Id., at 1169 (internal quotation marks and alterations omitted). "[A] typical citizen fearing for his personal safety-by definition-cannot distinguish himself from the mainstream." Ibid, (emphasis deleted; internal quotation marks and alterations omitted). As a result, ordinary, "law-abiding, responsible citizens, " District of Columbia v. Heller, 554 U.S. 570, 635 (2008), may not obtain a permit for concealed carry of a firearm in public spaces.

         Petitioners are residents of San Diego County (plus an association with numerous county residents as members) who are unable to obtain a license for concealed carry due to the county's policy and, because the State generally bans open carry, are thus unable to bear firearms in public in any manner. They sued under Rev. Stat. §1979, 42 U.S.C. §1983, alleging that this near-total prohibition on public carry violates their Second Amendment right to bear arms. They requested declaratory and injunctive relief to prevent the sheriff from denying licenses based on his restrictive interpretation of "good cause, " as well as other "relief as the Court deems just and proper." First Amended Complaint in No. 3:09-cv-02371, (SD Cal.) ¶¶149, 150, 152. The District Court granted respondents' motion for summary judgment, and petitioners appealed to the Ninth Circuit.

         In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F.3d 1144. The panel examined the constitutional text and this Court's precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150-1166. Based on these sources, the court concluded that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes "bear[ing] Arms' within the meaning of the Second Amendment." Id., at 1166. It thus reversed the District Court and held that the sheriff's interpretation of "good cause" in combination with the other aspects of the State's regime violated the Second Amendment's command that a State "permit some form of carry for self-defense outside the home." Id., at 1172.

         The Ninth Circuit sua sponte granted rehearing en banc and, by a divided court, reversed the panel decision. In the en banc court's view, because petitioners specifically asked for the invalidation of the sheriff's "good cause" interpretation, their legal challenge was limited to that aspect of the applicable regulatory scheme. The court thus declined to "answer the question of whether or to what degree the Second Amendment might or might not protect a right of a member of the general public to carry firearms openly in public." Peruta v. County of San Diego, 824 F.3d 919, 942 (2016). It instead held only that "the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public." Id., at 924 (emphasis added).

         II

         We should have granted certiorari in this case. The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case.

         A

         The en banc court's decision to limit its review to whether the Second Amendment protects the right to concealed carry-as opposed to the more general right to public carry-was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State's regulatory scheme as a whole. See First Amended Complaint ¶63 ("Because California does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the only means by which an individual can bear arms in public places"); id., ΒΆ74 ("States may not completely ban the carrying of handguns for self-defense"). And although the complaint specified the remedy that intruded least on the State's overall regulatory regime-declaratory relief and an ...


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